The controversy over the rules of procedure for the Senate trial
This article in today’s CNN gives some detailed and useful information about what McConnell has in mind for the rules for the Senate trial, as well as some details about how the discussion has gone in the R conference over these rules. 1/17
The single most important point in the article is that McConnell has sold his conference on sticking very strictly to the rules of procedure that were hammered out between Tom Daschle (D) and Trent Lott (R) for the Clinton impeachment trial in 1999. 2/17
This obviously makes this 1999 document important to the present controversy, so I looked it up. I believe I’ve found it: 3/17 tinyurl.com/wllzuos
The main impasse between Schumer and McConnell appears to be the way the votes on dismissal and witnesses were ordered in the rules for the 1999 Senate trial: 4/17
The rub is that these rules allow for a vote for dismissal, and in particular a vote for dismissal before the vote to subpoena witnesses. This is not acceptable to Schumer, 5/17
and if Pelosi won’t accept it either, it is her constitutional prerogative to withhold the articles of impeachment for months in order to apply pressure on McConnell to change the rules. 6/17
Democrats have a compelling reason for insisting on changing the 1999 rules on this point, because by the time the Senate held the Clinton impeachment trial in 1999, 7/17
Independent Counsel Ken Starr had had three years to depose witnesses, and the Senate itself deposed three witnesses that had not testified before the House. 8/17
Trump’s impeachment is quite different, because the most critical Trump Administration witnesses have refused to testify under orders from the White House. (This fact has been included in the House’s articles of impeachment.) 9/17
Interestingly, the CNN article cites an unnamed R Senator who has advocated removing the motion to dismiss on the grounds that the votes would not be there for it anyway, particularly at the beginning of the trial. 10/17
There is plenty of reason to doubt this, however.
It is much more likely that the fix is in for dismissal. It is clear that McConnell wants the shortest possible trial without witnesses, 11/17
and it is surely significant that he has been able to get the support of R Senators for the 1999 rules who don’t want to have to vote on contentious issues like subpoenaing the whistleblower. 12/17
McConnell has probably been able to reassure these skittish Senators because he is sure he has the votes for dismissal lined up. 13/17
One reason why McConnell wants to keep the motion to dismiss in the proposed rules is that it is by taking the 1999 rules as his strict guideline that he has been able to get consensus in his conference about how the trial should proceed. 14/17
Making a substantive change like removing the motion to dismiss would create problems for McConnell and his conference, because it would suggest that other things — maybe lots of things — could be up for grabs. 15/17
The motion to dismiss is particularly fraught with danger for McConnell because polls show that a large majority of voters — including a significant percentage of Rs — 16/17
want a fair trial with witnesses, and it is unlikely that this will happen if the R-controlled Senate sticks to the 1999 rules. 17/17
